Part 2Limits on allocation of spectrum

Part 2—Limits on allocation of spectrum

9 Simplified outline of this Part

This Part deals with the definition and application of the allocation limits that apply to the allocation of spectrum licences under this instrument.

The Minister has given the ACMA the allocation direction under subsection 60(10) of the Act, which requires the ACMA to determine procedures that impose limits on the aggregate parts of the spectrum that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may in total be used by the members of a specified group of persons, namely, any person and that person’s associates.

This Part also sets out when two participants in the allocation process are affiliated. Generally, if two participants are affiliated, they cannot both participate in the allocation process.

This Part also sets out when a participant in the allocation process is affiliated with a previous successful bidder under the previous allocation determination. In determining and applying procedures imposing the allocation limits, the ACMA must take into account spectrum licences to be allocated under this instrument, and spectrum licences allocated under the previous allocation determination. Generally, if a participant is affiliated with a previous successful bidder, there may be a limit on which lots the participant may be able to nominate as its preferred lots in the allocation process.

10 Meaning of allocation limits

In this instrument, a reference to the allocation limits is a reference to the limits that, under the allocation limits direction: (a) must be imposed by the procedures determined in this instrument for the allocation of spectrum licences in the residual 700 MHz band; and (b) ensure that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, no person or specified group of persons may use more than the spectrum specified in Schedule 3 in the 700 MHz band.

Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate of the parts of the spectrum in the 700 MHz band that, as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may be used by a person or specified group of persons. See the allocation limits direction.

11 Meaning of associate

(1) In this instrument, associate, in relation to a person, means: (a) for a body corporate: (i) a director or secretary of the body; or (ii) a related body corporate; or (iii) a director or secretary of a related body corporate; or (iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or (b) for an individual: (i) the individual’s spouse; or (ii) the individual’s de facto partner (within the meaning given by the Acts Interpretation Act 1901); or (iii) a body corporate in which the individual controls at least 15% of the voting power or holds at least 15% of the issued shares; or (iv) a body corporate of which the individual is a director or secretary; or (v) a body corporate that is related to a body corporate of which the individual is a director or secretary; or (c) in any case – any other person (other than the Commonwealth represented by the ACMA) who has a relevant agreement with the person that: (i) is for the use by a party to the agreement of spectrum licensed to either of those parties under a spectrum licence for residual 700 MHz band spectrum in the designated area; or (ii) relates to the acquisition of a spectrum licence for residual 700 MHz band spectrum in the designated area. (2) For paragraph (1)(c), a relevant agreement means an agreement, arrangement or understanding: (a) whether formal or informal or partly formal and partly informal; and (b) whether written or oral or partly written and partly oral; and (c) whether or not having legal or equitable force and whether or not based on legal or equitable rights; other than a roaming services agreement or an agreement between carriers provided for by or under the Telecommunications Act 1997 or Part XIC of the Competition and Consumer Act 2010.